Abel v. Johnson

Syllabus

The plaintiffs, owners of property in a subdivision, sought to enjoin the defendant abutting property owner from violating certain restrictive covenants in connection with deeds to the parties' properties. The first deed restriction, which limited the land to residential use only, was contained in a 1956 deed, whereby the original grantors conveyed the land to a housing developer, E Co. In a 1961 declaration executed by E Co., restrictions regarding the keeping of chickens and the parking of commercial vehicles were added. At trial, the defendant admitted to operating a landscaping company from her property and keeping chick- ens on her property, and that several vehicles on her property were used in conjunction with her landscaping business. The trial court found that the plaintiffs had standing to enforce the restrictive covenants contained in the 1956 deed and the 1961 declaration on the grounds that the parties' properties were part of a common scheme of develop- ment and both parties' deeds contained the restrictive covenants at issue. The trial court rendered judgment in favor of the plaintiffs and awarded the plaintiffs injunctive relief. On the defendant's appeal to this court, held: 1. The trial court improperly determined that the plaintiffs had standing to enforce the restrictive covenant in the 1956 deed that limited the use of the defendants' property for residential purposes, as there was no allegation or evidence that the plaintiffs were the original grantors of the 1956 deed or their successors in interest; the restrictive covenants set forth in the 1956 deed were expressly intended to inure to the benefit of the remaining land of the original grantors of the premises conveyed in the 1956 deed, which were subsequently conveyed to the parties, the plaintiffs had neither alleged nor proven that they were entitled to enforce the restrictive covenants at issue under a theory of mutuality of covenant and consideration, the original grantors, for their ben